Let court rule on Governor Lynch’s targeted aid plan

Published: February 18, 2005

Big changes are happening in New Hampshire’s education-funding debate. Gov. John Lynch and many of his fellow Democrats are now in agreement with a view held by most Republicans. Our current system of distributing a fixed amount of state aid for every student should be replaced with a “targeted aid” distribution formula.
This is encouraging, but until this new common ground expands to include bipartisan support for a constitutional amendment, Republican giddiness is premature. A new distribution formula alone is not an education-funding plan. A real plan must address the fact that much of what the court said in its Claremont decisions suggests targeted aid is unconstitutional. Dismissing or ignoring that fact will not produce lasting reform.
I had to deal with the same issue when I was a candidate for governor in 2002 and proposed an education-funding plan that included targeted aid. Like Governor Lynch, I heard arguments from lawyers who claim that targeted aid is constitutional. But I heard from many more that targeted aid is not constitutional. I listened to them all and included in my plan a constitutional amendment to end the game of guessing what the court might or might not allow an elected legislature to do.
More importantly, I made it clear that I believe the Claremont decisions were wrong and I would use every legal means available to overturn them. They were part of a nationwide wave of judicial activism to force upon us policies that had been rejected by our elected representatives. They were not, as some argue, an inevitable response to a stingy legislature.
I am sure Governor Lynch would dismiss such talk as mere ideology. In his inaugural speech, the governor referred to ideology as some kind of evil twin of partisan politics. But an ideology is simply a set of beliefs and values, and knowing something about the governor’s ideology would be useful to those trying to figure out what he might do if he turns out to be wrong in his certainty that his plan is constitutional.
The governor’s defenders do a lot of winking and nodding when you ask them about their plan to overcome constitutional issues. They talk about how the members of the Supreme Court have changed. They talk about how happy the towns that originally sued the state will be when they see how much money they’ll get under targeted aid. They talk about how satisfied the attorneys who won the case against the state will be as long as their clients are happy. Finally, they talk about the overwhelming support a constitutional amendment will enjoy if the court strikes down targeted aid.
All of this is speculation and outside of their control. It’s not a plan; it’s a dream. While some dreams do come true, this one isn’t likely to. It is likely, however, that the governor’s refusal to seek an advisory opinion from the Supreme Court will create a nightmare for New Hampshire cities and towns.
Every time the court has had the opportunity to bless a targeted aid plan, it has struck it down instead. If the governor and his allies have solid reasons to believe the outcome will be different this time, then they should ask the court for an advisory opinion. They shouldn’t wait for someone else to go to the court after the plan has been put in place.
The original Claremont towns may very well be happy with the money they’ll get through targeted aid, but many other towns won’t be. They have already built a statewide organization to make the case that the money they get today is less than what they deserve under the Claremont decisions. The attorney who won the Claremont case against the state has vowed publicly to continue the fight and he will have no problem finding a client.
The governor has not given anyone a sense of what he will do if his plan is successfully challenged. That is why Republicans must insist that his targeted aid bill be sent to the court for constitutional review.
Republicans have long argued that the Legislature should stop playing a game of “Mother May I” with the courts. But we also have argued that the Claremont decisions should not be a constraint on the Legislature’s decisions, and we have been prepared to take the steps necessary to rid ourselves of that constraint. Governor Lynch has not.
Bruce Keough of Dublin sought the Republican nomination for governor in 2002.

This article appears in the February 18 2005 issue of New Hampshire Business Review